Director of National Intelligence James Clapper, seen here in March, denied NSA analysts eavesdrop on Americans' phone calls without "proper legal authorization," but did not say what "proper legal authorization" might be.
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Edward Snowden, who became famous for leaking top-secret U.S. government documents, said today that the National Security Agency can get a look at information from Americans' domestic phone calls without a warrant.

In an online discussion organized by the Guardian newspaper this morning, the 29-year-old former intelligence analyst said, when it comes to the contents of e-mail and phone calls, "Americans' communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant."

Intelligence analysts at the NSA, CIA, FBI, the Defense Intelligence Agency, and other similar arms of the government who have access to raw data can "enter and get results for anything they want," said Snowden, who is believed to be in Hong Kong after leaving his home and girlfriend in Hawaii a few weeks ago.

One question in the Guardian chat asked Snowden: "Can analysts listen to content of domestic calls without a warrant?" He replied:

NSA likes to use "domestic" as a weasel word here for a number of reasons... The reality is that due to [a 2008 federal law known as FAA 702], Americans' communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. They excuse this as "incidental" collection, but at the end of the day, someone at NSA still has the content of your communications... If I target for example an email address, for example under FAA 702, and that email address sent something to you, Joe America, the analyst gets it. All of it. IPs, raw data, content, headers, attachments, everything. And it gets saved for a very long time -- and can be extended further with waivers rather than warrants."

On Sunday, Director of National Intelligence James Clapper released a carefully-worded statement in response to a CNET article and other reports questioning when intelligence analysts can listen to domestic phone calls. Clapper said: "The statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect and was not briefed to Congress."

NSA whistleblower Edward Snowden
The Guardian

Clapper's statement refers to "legal authorization" -- not a traditional court order backed by the privacy-protective standard of probable cause. That suggests that some in the Obama administration may be interpreting the law to grant legal authorization to an analyst to review domestic phone calls and e-mail messages, said Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation who has litigated domestic surveillance cases. (U.S. intelligence officials have argued in the past that the president had the constitutional authority, no matter what the law says, to authorize domestic spying without warrants in some cases.)

"The DNI has a history of playing games with wording, using terms with carefully obscured meanings to leave an impression different from the truth," Opsahl said today. "The word choice here raises more questions than it answers."

An extensive legal brief (PDF) that EFF filed last fall in its ongoing lawsuit against the NSA concludes: "The evidence shows that the NSA seeks a warrant only after the communication is initially acquired and analyzed by computers according to algorithms designed by humans, placed in a government database, and reviewed by an analyst."

The New York Times disclosed in 2009 that a secret NSA database, code-named PINWALE, archived foreign and domestic e-mail messages that analysts could search through "without warrants" as long as Americans' correspondence did not amount to more than 30 percent of any database search. The newspaper said an "analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton," which seems unlikely to have happened if a court order was required to surveil Americans, Opsahl said. A Washington Post article this month disclosed that NSA analysts are supposed to use search terms "designed to produce at least 51 percent confidence in a target's 'foreignness.'"

Alan Butler, appellate advocacy counsel at the Electronic Privacy Information Center, which today asked the U.S. government to suspend its domestic surveillance programs, said Clapper's carefully worded statement raises more questions than it answers:

Director Clapper's response this weekend highlights the difficulty of having meaningful public debate about a program defined by legal terms-of-art with no public oversight. His statement focuses primarily on the "legal authorizations" that consist of NSA and FBI targeting and minimization procedures. So far the government has provided almost no information about how these targeting and minimization procedures operate and whether they are legally sufficient... Without transparency and a better explanation of these programs, there is no assurance that domestic communications are adequately protected. Many domestic communications could be swept up in these dragnet programs and subject to review by analysts according to internal policy rules that remain secret.

Earlier reports have indicated that the NSA has the ability to record nearly all domestic and international phone calls -- in case an analyst needed to access the recordings in the future. A Wired magazine article last year disclosed that the NSA has established "listening posts" that allow the agency to collect and sift through billions of phone calls through a massive new data center in Utah, "whether they originate within the country or overseas." That includes not just metadata, but also the contents of the communications.

Documents that came to light in a different EFF lawsuit provide some insight into how the spy agency vacuums up data from telecommunications companies. Mark Klein, who worked as an AT&T technician for over 22 years, disclosed in 2006 (PDF) that he witnessed domestic voice and Internet traffic being surreptitiously "diverted" through a "splitter cabinet" to secure room 641A in one of the company's San Francisco facilities. The room was accessible only to NSA-cleared technicians.

AT&T and other telecommunications companies that allow the NSA to tap into their fiber links receive absolute immunity from civil liability or criminal prosecution, thanks to a law that Congress enacted in 2008 and renewed in 2012. It's a series of amendments to the Foreign Intelligence Surveillance Act, also known as the FISA Amendments Act.

Section 702 of the FAA says surveillance may be authorized by the attorney general and director of national intelligence without prior approval by the secret Foreign Intelligence Surveillance Court, as long as minimization requirements and general procedures blessed by the court are followed.

The Obama administration has refused to disclose those secret requirements and procedures. Last week, EPIC asked (PDF) Congress to require the disclosure of "all substantive legal interpretations" of Section 702 of the FAA.